Johnson v. Johnson et al

Filing 52

MEMORANDUM OPINION AND ORDER: The court OVERRULES plaintiff's objection to the magistrate judge's 50 PF&R. The objection requests that the court attach the plaintiff's prior filings to his objection. Id. The court reviewed each of plaintiff's prior filings to better understand his objection, see infra, and therefore DENIES his request. The court ADOPTS the factual and legal analysis contained within the PF&R; GRANTS defendants' 39 MOTION to Dismiss, or in the Alte rnative, MOTION for Summary Judgment; DISMISSES plaintiff's 2 complaint, without prejudice; and DIRECTS the Clerk to dismiss this matter from the court's docket. Signed by Senior Judge David A. Faber on 7/31/2018. (cc: plaintiff, pro se; counsel of record) (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
ALONZO JOHNSON,
Plaintiff,
v.

CIVIL ACTION NO. 1:17-00608

CASE MANAGER JOHNSON, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court is defendants’ “Motion to Dismiss,
or in the Alternative, Motion for Summary Judgment.”
39.

ECF No.

By Standing Order, this matter was referred to United

States Magistrate Judge Omar J. Aboulhosn for submission of
proposed findings and recommendation (“PF&R”) for disposition
pursuant to 28 U.S.C. 636(b)(1)(b).

The magistrate judge

submitted his PF&R on June 5, 2018, recommending that the court
grant defendants’ motion and remove this matter from the court’s
docket.
In accordance with the provisions of 28 U.S.C. § 636(b),
plaintiff was allotted fourteen days, plus three mailing days,
in which to file any objections to Magistrate Judge Aboulhosn’s
Findings and Recommendation.

The failure to file such

objections constitutes a waiver of the right to a de novo review
by this court.

Snyder v. Ridenour, 889 F.2d 1363 (4th Cir.

1989).
51.

Plaintiff filed an objection on June 25, 2018.

ECF No.

While plaintiff’s objection was not received by the Clerk

before the seventeen-day deadline expired on June 22, 2018, see
28 U.S.C. § 636(b)(1)(C), the objection signed by the plaintiff
is dated June 21, 2018.

See ECF No. 51 at p.2.

Accordingly,

the court considers the objections as having been timely filed
pursuant to the prison mailbox rule.

See Houston v. Lack, 487

U.S. 266, 270 (1988).
I.

BACKGROUND

On January 27, 2017, Counselor Prout issued an Incident Report
for plaintiff’s Failure to Follow Safety or Sanitation
Regulations.

See ECF No. 2-1, Incident Report 2809293.

The

Report alleged that the plaintiff was seen working out in an
unauthorized area.

Id.

Despite plaintiff arguing that he was

falsely accused by Prout, a hearing before the Unit Disciplinary
Committee (“UDC”) determined that the plaintiff committed the
infraction.

As a result, he was sanctioned to a loss of phone

privileges for 30 days.
The plaintiff appealed the decision through the administrative
remedy process.

Plaintiff claims that his appeal led six staff

members at FCI McDowell to retaliate against him, the cumulative
course of which has been fully detailed by Magistrate Judge
Aboulhosn.

See ECF No. 10 at pp. 1-3.

This civil action

followed, pursuant to Bivens v. Six Unknown Named Agents of Fed.
2

Bureau of Narcotics, 403 U.S. 388 (1971), alleging that
defendants violated plaintiff’s First, Fifth, and Eighth
Amendment rights.

Plaintiff requests monetary damages and to be

incarcerated at a different facility.

See id.; ECF No. 2 at pp.

1-12.
II.

PF&R RECOMMENDATION OF DISMISSAL

The PF&R recommended the court grant defendants’ motion to
dismiss for the following reasons.

First, the plaintiff failed

to exhaust his claim that he was transferred to a different
housing unit because of retaliation.

ECF No. 13 at pp. 8-14.

Second, claims under Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971) does not extend to
plaintiff’s claims of verbal retaliation founded in the First
Amendment.

Id. at pp. 14-24.

Third, plaintiff’s allegation

that Prout falsified the Incident Report does not constitute a
protected liberty interest.

Id. at pp. 24-25.

Fourth,

plaintiff’s loss of commissary and phone privileges do not
implicate a liberty interest under the Fifth Amendment’s Due
Process Clause.

Id. at pp. 25-33.

Fifth, Prout’s alleged

verbal harassment of plaintiff fails to state a cognizable claim
under the Eighth Amendment.

Id. at pp. 33-37.

Sixth and

finally, plaintiff’s claims against Warden Johnson fail to
detail how he was personally involved in the alleged retaliation

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except through mere deliberate indifference, which is not a
cognizable claim.
III. PLAINTIFF’S OBJECTION
Plaintiff objects that the magistrate judge failed to “take
note that staff [at FCI McDowell] was not acting according[] to
[Federal Bureau of Prisons] policy as state[d] in staff employee
conduct,” thereby violating plaintiff’s rights under the Prison
Litigation Reform Act.

ECF No. 51 at p.1. 1
IV.

ANALYSIS

While plaintiff’s objection fails to “direct the court to a
specific error in the magistrate’s proposed findings and
recommendations,” and therefore is not entitled to a de novo
review, Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982), the
court reviewed each of the plaintiff’s prior filings to better
grasp the alleged BOP policy violation that Magistrate Judge
Aboulhosn failed to “take note” of.

See ECF Nos. 1, 2, 2-1, 4,

7, 8, 25, 43, 46.
After its review, the court concludes that the only alleged
BOP policy violation that was not addressed in the PF&R stems
from Counselor Prout allegedly “intervening in [plaintiff’s] UDC
hearing causing the hearing to be postponed for his input, for

1

The objection also requests that the court attach the
plaintiff’s prior filings to his objection. Id. The court
reviewed each of plaintiff’s prior filings to better understand
his objection, see infra, and therefore DENIES his request.
4

Prout was the [illegible] who reported/ wrote the Incident
Report.”

ECF No. 2-1 at p.63.

Plaintiff alleges that the

Federal BOP Inmate Discipline Program prohibits an officer who
wrote the Incident Report from “particpat[ing][,]
interfer[ing][,] or help[ing]” with the UDC hearing.

ECF No. 2

at p.8.
Therefore, the plaintiff appears to challenge the
constitutionality of his disciplinary procedure.

Nevertheless,

the magistrate judge did not consider the disciplinary procedure
itself because the sanction arising from the disciplinary
procedure –- loss of plaintiff’s phone privileges for 30 days -failed to implicate a liberty interest.

See ECF No. 50 at pp.

25-29; see also Board of Regents of State Colleges v. Roth, 408
U.S. 564, 570-71 (1972).
In Gaston v. Taylor, the Fourth Circuit declared that an
inmate possesses a claim of entitlement in interests “which were
not taken away, expressly or by implication, in the original
sentence to confinement.”

946 F.2d 340, 343 (4th Cir. 1991).

These interests, however are curtailed to the,
freedom from restraint which, while not exceeding the
sentence in such an unexpected manner as to give rise
to protection by the Due Process Clause of its own
force, nonetheless imposes atypical and significant
hardship on the inmate in relation to the ordinary
incidents of prison life.

5

Sandin v. Conner, 515 U.S. 472, 484 (1995) (citations omitted).
Courts have uniformly determined that “there is no
constitutional or federal statutory right to the use of a
telephone while in prison.”

United States v. Alkire, 82 F.3d

411 (4th Cir. 1996) (unpublished); see also Coil v. Peterkin,
No. 1:07CV145, 2009 WL 3247848, at *10 (M.D.N.C. Oct. 5, 2009)
(“Since inmates do not have a constitutional right to telephone
access, Defendant's denial of telephone access to Plaintiff is
not a ground upon which Plaintiff can be granted relief.”),
aff'd, 401 Fed. Appx. 773 (4th Cir. 2010); Chisolm v. SCDC, No.
CA 1:12-3055-RBH-SVH, 2013 WL 1567395, at *2 (D.S.C. Feb. 7,
2013), report and recommendation adopted, No. 1:12-CV-03055-RBH,
2013 WL 1567443 (D.S.C. Apr. 15, 2013) (“Prisoners do not have a
protected liberty interest in . . . telephone privileges.”)
(collecting cases).

Accordingly, plaintiff has no

constitutional right to the loss of his phone privileges arising
from his disciplinary proceeding, and plaintiff’s objection is
of no merit.
V.

CONCLUSION

Accordingly, the court OVERRULES plaintiff’s objection to
the magistrate judge’s PF&R.

The court ADOPTS the factual and

legal analysis contained within the PF&R, GRANTS defendants’
“Motion to Dismiss, or in the Alternative, Motion for Summary
Judgment,” (ECF No. 39); DISMISSES plaintiff’s complaint,
6

without prejudice, (ECF No. 2); and DIRECTS the Clerk to dismiss
this matter from the court’s docket.
The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to counsel of record and plaintiff,
pro se.
It is SO ORDERED this 31st day of July, 2018.
ENTER:
David A. Faber
Senior United States District Judge

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